Employment Law I: Employee Rights - Job Classification

CHAPTER 12 - EMPLOYMENT LAW I: EMPLOYEE RIGHTS

Part One - Selection

Job Classification

› Employment-related legal rights and responsibilities depend on the type of relationship the employer decides to build with the worker.

› Contingent workers, along with independent contractors, who are increasingly relied on to perform specific, short-term, nonrecurring jobs, permit employers to rapidly & inexpensively inflate or shrink workforces as competitive & regulatory conditions change.

Employee or Independent Contractor?

* Employee (long-term or contingent) or an independent contractor: worker under contract to organization to do specific task, not legally part of organization.

* Where a worker's performance is controlled by an employer or where employer has right or ability to control that work, worker likely to be considered employee.

* Business that hires independent contractor generally is not required to comply with wide range of employment & labor law standards that would apply where worker is employee. Thus, business must provide unemployment insurance, workers' compensation coverage, minimum wages, and so on to employees, but generally would not need to do so for independent contractors. Employers not liable for discrimination claims by independent contractors.

Classification Problems

* Employees, unlike independent contractors, are protected by the Fair Labor Standards Act, which requires, among other things, the payment of the federal minimum wage & overtime pay.

Hiring & the Law

Potential legal problems in hiring:

* Resume Fraud

* Background Checks

* Inappropriate Questions - questions about political views, age, etc, are lawful but discrimination based on answers to those questions would be illegal.

* Noncompete Clauses - (emp quits calls clients to come to new job). Employers sometimes require employees to sign agreements providing they will not compete with their employer, solicit its customers or employees, pass trade secrets to others, & so on for specified period of time.

* Arbitration - new hires are sometimes expected to sign agreements specifying that disputes with employer will be settled by arbitration rather than litigation. (Empr like arb, emp don't). In any case, federal government's Equal Employment Opportunity Commission retains authority to file discrimination lawsuits on behalf of employees despite arbitration agreement.

* References - saying sth bad can be considered defamation/slander. If you fail to say sth and employee harms someone, misrepresentation or negligent referral.

Successful defamation suit requires following conditions:

1. False statement

2. Statement must be "published" to a third party

3. Employer must be responsible for the publications

4. Plaintiff's reputation must be harmed

Courts provide protection of what is labeled a qualified privilege. Under privilege, legitimate business communications, with some exceptions, would be shielded from litigation.

Part Two - Liability

* An enterprise ordinarily not liable for acts of its independent contractors.

* Employers often bear legal responsibility for employees' accidents or wrongs.

› Liability may spring from the doctrine of respondeat superior (let the master answer), a form of vicarious liability.

Scope of Employment

* Employers will be held liable under respndeat superior/vicarious liability employees when those acts occur within the scope of employment (on the job).

* A finding of employer liability does not excuse employee from her personal liability, but the respondeat superior reasoning does have the potential effect of opening the employer's deeper pockets to plaintiff.

* Questions to determine whether harm occurred in scope of employment:

1) Was employee subject to employer's supervision?

2) Was employee motivated, at least in part, by a desire to serve the employer's business interests?

3) Did the problem arise substantially within normal working hours & in a work location?

4) Was the act in question of the general kind the employee had been hired to perform?

Hiring/Retention/Supervision

* Negligence - Employers may be directly liable for negligence in

› Hiring an employee

› Retaining an employee who subsequently causes harm to a third party

› Careless training or supervision

* Employer may be liable for acts outside of scope of employment.

Part Three - Fair Labor Standards Act

Fair Labor Standards Act (FLSA), which is directed to these major objectives:

1. Establishment of a minimum wage that provides at least a modest standard of living for employees.

2. Flexible ceiling on hours worked weekly, the purpose of which is to increase number of employed Americans.

3. Child labor protection.

4. Equal pay for equal work regardless of gender.

* Minimum Wage - reduce poverty, can increase unemployment.

* Overtime - Most workers are entitled to FLSA protections, including minimum wage & overtime, but certain occupational classes are exempt (managers & some professionals) and therefore are not protected by FLSA.

o Misclassification are one of two primary areas of overtime contention; other being off-the-clock claims in which employers are accused of not giving employees recorded credit for all of the time they have worked.

* New Rules - These rules attempt to clarify distinction between exempt & nonexempt employees.

o Nearly